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Lampe v. Ascher

OPINION FILED MAY 11, 1978.

CATHERINE LAMPE ET AL., PLAINTIFFS-APPELLANTS,

v.

WILLIAM ASCHER, CHIEF OF POLICE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. JAMES T. LONDRIGAN, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Can a police department, in its discretion, accept or refuse tendered bail in misdemeanor cases after bond has been set?

In short, no. It must be accepted.

We reverse and remand.

On Friday, July 15, 1977, Ms. Lampe and Ms. Gladwell were arrested by officers of the Springfield Police Department and charged with a misdemeanor (soliciting for prostitution). The women's attorney phoned Judge Eugene Duban so that the judge might set bail. Judge Duban called the police station and bond was set for each woman at $1,000. The desk sergeant admits someone came to the station with the requisite money to post bond for the women, but the sergeant refused to accept the tendered money. Thereafter, the women's attorney called the desk sergeant to find out why the money was refused. The answer: "The law says I may accept bail. It doesn't say I have to sir." (Emphasis ours.)

The attorney then talked to Lieutenant Lamken. Lamken persisted in the theory that the sergeant was under no duty to accept bail and said, "If you can get the judge to come down here * * * then she can be bonded out." According to Lamken, the judge would have to accept bail. The lieutenant admitted that the police accepted bail money from other misdemeanor defendants. The attorney continued to press for a reason why the police refused the tendered money, to which Lamken replied, "In this particular case we do not choose to. We may if we choose to accept bail." However, he then stated, "I am not aware of anything — any circumstances. I don't even know about the case."

Connie Young went to the Springfield police station twice on Saturday, July 16, and once on Sunday, July 17; each time the police refused the tendered bail money for the two women. On July 16, about 4 p.m., Linda Britten was arrested by the Springfield Police Department for a misdemeanor (public indecency), yet she was released on bond about 4:45 p.m. the same afternoon.

Lampe and Gladwell filed a suit for injunction and declaratory relief on Monday, July 18, 1977. The legal basis of the complaint was that the Springfield bail practices denied their right to bail. A motion for temporary restraining order was filed and a hearing was held the same day. All of the facts we have cited were adduced as evidence and, in addition, other facts were revealed. Judge Duban testified he had frequently set bail over the phone and had never gone to the jail to set bond, but he was aware of one prior occasion where bail was refused by the police after he had set bond. Judge Duban did not call the police after Lampe and Gladwell's attorney had informed him of the refusal to accept bail; his impression was that they would not have been released even if he called again. In his personal opinion, the practice had some equal protection problems.

James Dickerson, chief of detectives, testified that his interpretation of section 110-9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 110-9) allowed police officers discretion in accepting or refusing to accept bail from misdemeanor defendants. Dickerson admitted this practice was long-standing and that some criteria involved in the decision to accept or refuse tendered bail included: (1) the defendant's past record, (2) the nature of the offense, and (3) whether the officer feels the person may cause "additional trouble or be involved in the same situation or offense prior to appearing in court." Dickerson also recounted that about three weeks before the July 18 hearing, seven people arrested on a Friday on "similar charges" were detained until Monday court even though the police had received a call from a judge setting bond.

Lampe and Gladwell argued to the trial court that the police have no discretion to accept or refuse bail once set by a judge or supreme court rule. *fn1 The policemen argued that the police, under the statute, may refuse to accept bail and require a judge's personal presence and signature before bail is accepted. The trial court was troubled and concerned with the discretion shown by the police officers. However, he felt he had to follow the intent of the legislature and the use of "may" in section 110-9 indicated to him that the police officers were to have some discretion. The trial court denied the women's motion for a temporary restraining order on the sole basis that since the police officers had discretion in accepting or refusing tendered bail, there was no showing of a likelihood of success on the merits. Notice of appeal from the denial of the temporary restraining order was filed the next day. This court also allowed an amicus petition.

• 1, 2 The police first argue that the underlying complaint does not state a cause of action since there is no "actual controversy." (Ill. Rev. Stat. 1975, ch. 110, par. 57.1.) Even though this issue was not presented to the court below, the police may raise the complaint's sufficiency in this court. (See People ex rel. Difanis v. Futia (1978), 56 Ill. App.3d 920, 373 N.E.2d 530.) However, we find Phillips v. Village of Libertyville (1970), 120 Ill. App.2d 172, 256 N.E.2d 351, to be persuasive on the issue of actual controversy. The police here claim the statute gives them discretion to accept or refuse bail; the women argue such discretion is unconstitutional. It seems apparent that the police will continue the existing practice. Since the alleged illegal practice occurs on weekends (when local courts> normally do not operate) and is of short duration (vis-a-vis any one citizen) it is a problem "capable of repetition, yet evading review." Ergo, we hold that this controversy over the police practice based on the statute's interpretation is an "actual controversy" under our statutory provisions for declaratory judgment. Phillips.

No argument is raised by the police on Lampe and Gladwell's standing to bring this action nor on the question of whether this is a proper subject for a class action, so we do not comment on those issues.

We now reach the rather narrow issue: Do the Illinois statutes and the supreme court rules give a local law enforcement agency discretion to accept or refuse tendered bail in misdemeanor cases after bond has been set by a judge or supreme court rule? Supreme Court Rule 528 sets bail for misdemeanor offenses; and it is undisputed that bail for the July 15, 1977, charges filed against Lampe and Gladwell was set by rule at $1,000. Supreme Court Rule 553(a) states that, upon designation by the chief judge of the circuit, certain public employees (including law enforcement officers) are authorized to let bail to misdemeanor defendants such as Lampe and Gladwell; the authorized locations for bail letting are a number of public buildings, including police stations. Section 1 of the Illinois quasi-criminal offenses and misdemeanor bail act (Ill. Rev. Stat. 1975, ch. 16, par. 81) provides for the taking of bail by certain classes of public employees in certain public buildings much the same as in Supreme Court Rule 533(a), and, in addition, the statute provides that bail money received must be delivered to the circuit clerk not later than 48 hours after receipt (unless the accused appears in court sooner). Section 110-9 provides:

"When bail has been set by a judicial officer for a particular offense or offender any sheriff or other peace officer may take bail in accordance with the provisions of Section 110-7 or 110-8 of this Code and release the offender to appear in accordance with the conditions of the bail bond, the Notice to Appear or the Summons. The officer shall give a receipt to the offender for the bail so taken and within a reasonable time deposit such bail with the ...


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